DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Nursing and Midwifery Federation
v
Melbourne City Council
(B2019/1284)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 NOVEMBER 2019

Proposed protected action ballot of employees of Melbourne City Council.

[1] This is an application by the Australian Nursing and Midwifery Federation (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Melbourne City Council (Respondent).

[2] On 7 November 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Ms D Krouskos of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR714103.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation filed a case against the Melbourne City Council in the Fair Work Commission, challenging the Council's decision to disallow a proposed protected action ballot among its employees. The Federation sought to organise a vote on potential industrial action to address concerns regarding employment conditions and job security within the Council. The primary legal issue before the Commission was whether the Council's decision to disallow the ballot was lawful and justifiable under the relevant provisions of the Fair Work Act.

The Fair Work Commission examined the procedural fairness and substantive validity of the Council's decision. It considered whether the Council had followed the correct procedures in disallowing the ballot and whether the decision was made for a proper purpose. The Commission also assessed whether the Council's decision was reasonable and proportionate in the circumstances. In its analysis, the Commission found that the Council had not adequately justified its decision, and the disallowance was not in accordance with the law. The Commission held that the Council's actions were not procedurally fair, and the decision was not supported by proper reasons.

As a result, the Commission ordered the Melbourne City Council to allow the proposed protected action ballot to proceed, ensuring that the employees' right to organise and take industrial action was upheld. The decision underscores the importance of procedural fairness and the need for public sector employers to provide clear and justifiable reasons when disallowing protected industrial action.

Australian Nursing and Midwifery Federation v Melbourne City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established